UK: Audiovisual Media Services Regulations 2009 Announced

Last Updated: 8 December 2009
Article by Susan Barty, Susie Carr, Lucy Kilshaw and Tom Scourfield

The Audiovisual Media Services (AVMS) Directive requires Member States to establish a regulatory system for on-demand services that provide television and television-like programmes (i.e. those competing for the same audience as television broadcasts) and to ensure that they adhere to particular standards. The Audiovisual Media Services Regulations 2009 (the "Regulations"), which implement the Directive, have now been published and are due to come into force on 19 December 2009.

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The Audiovisual Media Services (AVMS) Directive requires Member States to establish a regulatory system for on-demand services that provide television and television-like programmes (i.e. those competing for the same audience as television broadcasts) and to ensure that they adhere to particular standards. The Audiovisual Media Services Regulations 2009 (the "Regulations"), which implement the Directive, have now been published and are due to come into force on 19 December 2009.

Background

In December 2007 the AVMS Directive was formally adopted by the Council of Ministers and the European Parliament. The Regulations will implement the requirements of the AVMS Directive in the UK and are due to come into force on 19 December 2009, the deadline for implementation. The Government has decided only to include such measures in the Regulations as are necessary to ensure the effective implementation of the AVMS Directive and not to go beyond what the AVMS Directive permits or requires. The aim is to avoid imposing undue or excessive new regulatory burdens on broadcasting and on-demand services while still ensuring the level of public protection intended by the AVMS Directive.

The Regulations will require amendments to be made to the Communications Act 2000, the Copyright Designs and Patents Act 1988 and the Wireless Telegraphy Act 2006.

On-demand services

The Regulations apply to "on-demand programme services". Services will be caught by the definition if:

  • the principal purpose is the provision of programmes of a form and content which are comparable to those usually included in television programme services;
  • access is on-demand;
  • a person has editorial responsibility for the programme;
  • it is made available by that person for use by members of the public; and
  • the person who has editorial responsibility is under the jurisdiction of the United Kingdom under the AVMS Directive.

The Regulations set out a regulatory framework and set out minimum content and advertising standards to which such services must adhere. They also modify the definition of a television licensable content service so that broadcast services provided over the internet will also require a broadcasting licence from Ofcom.

The Regulations place a duty on Ofcom to ask a broadcaster to comply with the broadcasting rules of another EU Member State when a substantiated request is received from that Member State for the broadcaster to do so (however, there is no obligation for Ofcom to impose or enforce such rules). This provision was introduced because some Member States were concerned about the "country of origin" principle under which television broadcasters are regulated in the Member State from which they broadcast, rather than in the Member State(s) in which their broadcasts are received, thereby enabling some broadcasters to avoid stricter rules. The new procedure is intended to facilitate co-operation between Member States.

It also brings within the scope of regulation non-EU satellite television services which are uplinked to satellite from within the UK.

Product placement

While the general rule under the AVMS Directive is that product placement is prohibited, Member States may choose to permit it in films and certain types of programmes. Despite previous indications by the Government that product placement would not be permitted, the Regulations do permit product placement within the boundaries set out in the Directive. For example, product placement will be permitted in on-demand services, films, sports programmes and light entertainment, or where there is no payment involved. It is not permitted in children's programmes, news and current affairs programmes and no programmes may include product placement of tobacco, tobacco companies or prescription medicines. In addition, warnings that explain the programme features product placement must be screened at the beginning and end of the programme and after every advertising break.

There are many general conditions, including, for example, that product placement must not directly encourage the purchase of goods or services, must not affect the editorial independence of the service provider and must not encourage behaviour prejudicial to health or safety. In addition, there are alcohol specific content restrictions.

The Government is currently consulting on product placement generally in the UK (to see our recent Law-Now article on the Consultation on Product Placement on Television please click here). The Regulations may be expected to be reviewed, following the conclusion of that consultation.

Sponsorship

The Regulations on sponsorship are very similar to those in respect of product placement and match closely the provisions of the AVMS Directive. The provisions also stipulate how the logo of the sponsor must be displayed.

Enforcement

Ofcom will be given powers to regulate on-demand programme services and ensure that they comply with the minimum standards. They may designate also one or more bodies to act as co-regulators. Most likely, the Association for Television On Demand will be designated as co-regulator with Ofcom for programme content and the Advertising Standards Agency will be designated as the co-regulator for advertising. The Regulations specify that the relevant regulatory authority may give the contravening provider of an on-demand programme service either an enforcement notification and/or impose a financial penalty on the provider. The maximum penalty is the greater of 5 per cent of the provider's applicable qualifying revenue or £250,000.

Future developments

Early next year the Government will implement further regulations, which require providers of on-demand programme services to notify the regulatory authorities that they are providing or intend to provide such services and which will allow the regulatory authorities to levy fees on service providers in order to cover the cost of regulation.

Conclusion

The Regulations stick very closely to the text of the AVMS Directive. Except for the relaxation on product placement, the provisions are therefore not surprising.

The Government will review the implementation of the Directive in 2012. To view the Regulations, please click here.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 03/12/2009.

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